Judges: S.H. Kapadia, C.J., B. Sudershan Reddy, K.S. Panicker Radhakrishnan, S.S. Nijjar and Swatanter Kumar, JJ.

Facts:

The Bangalore Development Authority (Authority) had issued a preliminary notification for acquisition of disputed land. Non- finalisation of acquisition proceedings resulted in filing of the Writ Petition by the owners for quashing of preliminary as well as the final notification. On the representation of the said owners, the Authority passed Resolution No. 1084 dated 28th June, 1988 de-notifying to the extent of 1 acre and 2 guntas of the land from acquisition. Thus, out of the total land of the said owners, land admeasuring 1 acre 32 guntas was acquired, while remaining land was de-notified by the said resolution. The Writ Petition was withdrawn.

Thereafter, the present appellant purchased the said land. It is averred that permission was granted by the Authority to the erstwhile owners to construct culvert/bridge on the storm water drain abutting their land at their own cost, in furtherance to which the appellant commenced the construction. In the meantime, Respondent No. 3 issued a letter to the appellant stating that the said permission was temporarily withdrawn until further orders. This was followed by another letter in which Respondent No. 3 informed the appellant that de-notification of the land for acquisition vide Resolution had been withdrawn vide Resolution No. 325/97 dated 31st December, 1997 and the appellant was not entitled to raise any construction on the land in question as acquisition proceedings had already been revived.

Aggrieved by the action of the respondents, appellant filed Writ Petition before the Karnataka High Court praying for quashing of Resolution No. 325/97 and acquisition proceedings initiated from the preliminary and final notification. The principal argument raised by the appellant before the High Court was that the provisions of Section 11A are applicable to the BDA Act and the award having been made after a period of more than two years from the date of declaration under Section 6 of the Land Acquisition Act, the acquisition proceedings have lapsed.

The learned Single Judge of Karnataka High Court, vide his judgment held that the appellant herein has no locus standi to question the acquisition proceedings and withdrawal of the earlier Resolution by the subsequent Resolution was not bad in law. The correctness of the judgment of the learned Single Judge was questioned before the Division Bench of that Court. This Writ Appeal also came to be dismissed and the Court declined to interfere with the reasoning recorded by the learned Single Judge which resulted in filing of the present Special Leave Petition.

As the similar issue is already under consideration before the Constitutional Bench in the case of Girnar Traders v. State of Maharashtra, the present matter was directed to be tagged with the same.

Issues:

(i) Whether the provisions of the BDA Act, specifically or by implication, require exclusion and/or inclusion of certain provisions like Sections 6 and 11A of the Land Acquisition Act?

(ii) Whether Entry 42 in List III of Schedule VII denudes the power of the State Legislature to the extent that in an enactment within its legislative competence, it cannot incidentally refer/enact in regard to the subject matter falling in the Concurrent List?

(iii) Whether there is conflict between BDA Act and Land Acquisition Act?

Contentions: 

Appellants

(i) Acquisition and requisitioning of property' is relatable only to Entry 42 of the Concurrent List (List III) of Schedule VII, read with Article 246 of the Constitution of India. This, being a 'stand alone entry', cannot be incidental to any other law. The State has legislative competence to enact BDA Act with reference to Article 246 read with Entry 5 and/or 18 of List II of Schedule VII to the Constitution. State Legislature may even combine both the laws but cannot make 'Acquisition' incidental to State law.

(ii) Since Entry 42 in List III provides a concurrent subject matter of legislation, both the Parliament and the State Legislature would be competent to enact their respective laws covering the subject matter of acquisition and requisitioning of property. The Parliament has enacted a law with reference to Entry 42, List III. The law could be enacted by the State in combination of subject matters covered under other entries, i.e., Entries 5 and 18 of List II. The law enacted by the Centre would take precedence and the State Act, insofar as it provides to the contrary, shall be repugnant. Thus, the field being covered by the Central law, Section 11A of the Land Acquisition Act will prevail and has to be read into the provisions of Section 27 of the BDA Act.

(iii) The provisions of Land Acquisition Act, as amended by the Central Act 68 of 1984, are adopted vide Section 36 of the BDA Act by the principle of legislation by reference as opposed to legislation by incorporation, i.e. writing of the provisions by pen and ink. Thus, the amended provisions of the Central Act shall be read into the State Act and Section 11A, being one of such provisions, would form an integral part of the State Legislation.

(iv) There is no repugnancy between the two legislations. They operate in different areas. The BDA Act does not provide for lapsing of acquisition but refers only to lapsing of the scheme under Section 27. Lapsing of acquisition is contemplated only under Section 11A of the Land Acquisition Act. Thus, the contention is that the acquisition, as a result of default in terms of Section 11A of the Land Acquisition Act, shall always lapse.

(v) Provisions of Section 11A can purposefully operate as a part of the scheme under the BDA Act. Such approach would be in consonance with the larger policy decision of balancing the rights of the individuals, who are deprived of their properties by exercise of the State power of eminent domain. The public authorities would be required to act with reasonable dispatch. Lapsing of acquisition does not take away the right of the State to issue fresh notification/declaration within the currency of the scheme.

Analysis:

Scheme of BDA Act and relation between BDA Act and Land Acquisition Act

I. The provisions of BDA Act postulate acquisition of land by two modes. Firstly, by entering into an agreement with the owner of the land; and secondly, otherwise than by agreement which shall be regulated by the provisions of Land Acquisition Act, in so far as they are applicable. Where the lands are acquired by agreement, there would be hardly any dispute either on facts or in law. Controversies, primarily, would arise in the cases of compulsory acquisition under the provisions of the Act. The intention of the Legislature, in this case, is clear to take recourse to the provisions of the Land Acquisition Act to a limited extent and subject to the supremacy of the provisions of the State Act.

II. As per BDA Act, once the land is acquired and it vests in the State Government in terms of Section 16 of the Land Acquisition Act, then the Government upon (a) payment of the cost of acquisition and (b) the Authority agreeing to pay any further cost, which may be incurred on account of acquisition, shall transfer the land to the Authority whereupon, it shall vest in the Authority. The Government is further vested with the power to transfer land to the Authority belonging to it or to the Corporation as per Section 37 of the BDA Act. In terms of Section 69 of the BDA Act, the Government is empowered to make rules to carry out the purposes of the Act. Under Section 70, the Authority can make regulations not inconsistent with the provisions of the Act, while in terms of Section 71, the Authority is again vested with the powers to make bye-laws not inconsistent with the Rules or the Regulations. Both these powers of the Authority are subject to previous approval of the Government. Sections 73 of the BDA Act gives overriding effect to the provisions of this Act and vide Section 77, the BDA Act repealed the Karnataka Ordinance 29 of 1975.

III. The provisions of the Land Acquisition Act, which provide for timeframe for compliance and the consequences of default thereof, are not applicable to acquisition under the BDA Act. They are Sections 6 and 11A of the Land Acquisition Act. As per Section 11A, if the award is not made within a period of two years from the date of declaration under Section 6, the acquisition proceedings will lapse. Similarly, where declaration under Section 6 of this Act is not issued within three years from the date of publication of notification under Section 4 of the Land Acquisition Act or within one year where Section 4 notification was published subsequent to the passing of Central Act 68 of 1984, no such declaration under Section 6 of the Land Acquisition Act can be issued in any of these cases.

IV. Thus, it is clear that the BDA Act is a self-contained code which provides for all the situations that may arise in planned development of an area including acquisition of land for that purpose. The scheme of the Act does not admit any necessity for reading the provisions of Sections 6 and 11A of the Land Acquisition Act, as part and parcel of the BDA Act for attainment of its object. The primary object of the State Act is to carry out planned development and acquisition is a mere incident of such planned development. The provisions of the Land Acquisition Act, where the land is to be acquired for a specific public purpose and acquisition is the sum and substance of that Act, all matters in relation to the acquisition of land will be regulated by the provisions of that Act. The State Act has provided its own scheme and provisions for acquisition of land.

V. The co- relation between the two enactments is a very limited one. The provisions of Land Acquisition Act would be attracted only in so far as they are applicable to the State law. Where there are specific provisions under the State Act the provisions of Central Act will not be attracted.

VI. Furthermore, reading the provisions of default and consequences thereof, as stated under the Central Act into the State Act, is bound to frustrate the very scheme formulated under the State Act. Only because some of the provisions of the Land Acquisition Act are attracted, it does not necessarily contemplate that all the provisions of the Central Act would per se be applicable to the provisions of the State Act irrespective of the scheme and object contained therein. The Authority under the BDA Act is vested with complete powers to prepare and execute the development plans of which acquisition may or may not be a part. The provisions of the State Act can be implemented completely and effectively on their own and reading the provisions of the Land Acquisition Act into the State Act, which may result in frustrating its object, is not called for.

VII. One of the apparent and unavoidable consequences of reading the provisions of Section 11A of the Central Act into the State Act would be that it is bound to adversely affect the 'development scheme' under the State Act and may even frustrate the same.

VIII. As per the scheme of the two Acts, the conclusion has to be that they can be construed and applied harmoniously to achieve the object of the State Act and it is not the requirement of the same that provisions of Section 11A of the Central Act should be read into the State Act.

Exclusion and/or inclusion of certain provisions like Sections 6 and 11A of the Land Acquisition Act in BDA Act.

I. The provisions relating to acquisition like passing of an award, payment of compensation and the legal remedies available under the Central Act would have to be applied to the acquisitions under the State Act but the bar contained in Sections 6 and 11A of the Land Acquisition Act cannot be made an integral part of the State Act as the State Act itself has provided specific time-frames under its various provisions as well as consequences of default thereto. The scheme, thus, does not admit such incorporation.

Power of State to enact/refer in regard to the subject matter falling in the Concurrent List.

I. Entries in the constitutional Lists play a significant role in examining the legislative field taking its source of power from Article 246 of the Constitution. BDA Act is an Act which provides for formulation and implementation of schemes relating to development of the Bangalore City. Acquisition of land is neither its purpose nor its object and is merely an incidental consequence of principal purpose of development of land. Planned development under the scheme is a very wide concept and the concerned Authorities are accordingly vested with amplified functions and powers.

II. The provisions of the BDA Act constitute a self-contained code in itself, object of which is planned development under the scheme and not acquisition of land. Thus, only those provisions of the Land Acquisition Act which relate to the acquisition, and have not been enacted under the State law, have to be read into the BDA Act. It has a self-contained scheme with a larger public purpose. The State legislature is competent to enact such a law and it is referable to power and field contained in Article 246(2) of the Constitution read with Entries 5 and 18 of List II of Schedule VII. Such legislation may incidentally refer to Land Acquisition Act for attaining its own object.

III. Further, BDA Act is relatable to the Entries which squarely fall into a field assigned to the State legislature and, thus, would be a matter within the legislative competence of the State. For that matter State legislature is equally competent to enact a law even with relation to matters enumerated in List III provided it is not a covered field. The BDA Act relates to planned development under the scheme and it has been enacted with that legislative object and intent. An ancillary point thereto or reference to certain other provisions which will help in achieving the purpose of the State law, without really coming in conflict with the Central law, is a matter on which a State can enact according to the principle of incidental encroachment. The Court also has to keep in mind the distinction between 'ancillariness' and 'incidentally affecting'.

Conflict between BDA Act and Land Acquisition Act

I. We have a federal Constitution and its essence is the distribution of legislative powers between the Centre and the State. The Lists enumerate, elaborately, the topics on which either of the legislative constituents can enact. Despite that, some overlapping of the field of legislation may be inevitable. Article 246 lays down the principle of federal supremacy that in case of inevitable and irreconcilable conflict between the Union and the State powers, the Union power, as enumerated in List I, shall prevail over the State and the State power, as enumerated in List II, in case of overlapping between List III and II, the former shall prevail. This principle of federal supremacy laid down in Article 246(1) of the Constitution should normally be resorted to only when the conflict is so patent and irreconcilable that co-existence of the two laws is not feasible. Such conflict must be an actual one and not a mere seeming conflict between the Entries in the two Lists. While Entries have to be construed liberally, their irreconcilability and impossibility of co-existence should be patent. One, who questions the constitutional validity of a law as being ultra vires, takes the onus of proving the same before the Court. Doctrines of pith and substance, overlapping and incidental encroachment are, in fact, species of the same law. It is quite possible to apply these doctrines together to examine the repugnancy or otherwise of an encroachment. In a case of overlapping, the Courts have taken the view that it is advisable to ignore an encroachment which is merely incidental in order to reconcile the provisions and harmoniously implement them. If, ultimately, the provisions of both the Acts can co-exist without conflict, then it is not expected of the Courts to invalidate the law in question

II. The repugnancy would arise in the cases where both the pieces of legislation deal with the same matter but not where they deal with separate and distinct matters, though of a cognate and allied character. Where the State legislature has enacted a law with reference to a particular Entry with respect to which, the Parliament has also enacted a law and there is an irreconcilable conflict between the two laws so enacted, the State law will be a stillborn law and it must yield in favour of the Central law. To the doctrine of occupied/overlapping field, resulting in repugnancy, the principle of incidental encroachment would be an exception.

Conclusion:

I. BDA Act is a self-contained code.

II. Provisions introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984, limited to the extent of acquisition of land, payment of compensation and recourse to legal remedies provided under the said Act, can be read into an acquisition controlled by the provisions of the BDA Act but with a specific exception that the provisions of the Land Acquisition Act in so far as they provide different time frames and consequences of default thereof, including lapsing of acquisition proceedings ,cannot be read into the BDA Act.

III. Section 11A of the Land Acquisition Act being one of such provisions cannot be applied to the acquisitions under the provisions of the BDA Act.